Kennedy’s QuestionThe Weekly StandardAt oral argument in Sebelius v. Hobby Lobby, Justice Kennedy posed a challenging, fundamental question to the Solicitor General: “what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? … [W]hen we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency, to determine that this corporation gets the exemption on that one?” This is a question Justice Kennedy has asked throughout his career on the bench: when it comes to the most controversial issues of our time, should Congress be allowed to simply hand the issue off to unelected regulators through vague delegations? Justice Kennedy has once again asked the question — how will he answer it?

The Regulatory CourtThe Weekly StandardThe D.C. Circuit plays a singular role in American law and policy today — it is primarily responsible for hearing appeals of federal regulatory actions, as well as cases raising constitutional questions. The court itself did not choose that role; that role has been chosen for it, time and time again.

The Blessings of LibertyThe Weekly Standard
On Spielberg’s Lincoln, slavery, and the Thirteenth Amendment. True, as many have pointed out, the movie illustrates an important paradox: in republican government, high principle can be achieved through low politics. But it also illustrates (or ought to illustrate) a second, no less important, paradox: that the presidential powers capable of infringing liberty are also necessary to secure liberty.

Bork WonCommentary
Twenty-five years after Robert Bork’s failed nomination to the Supreme Court, his judicial methodology has enjoyed great success, both in the courts and in the court of public opinion.

Obamacare on Trial: A SeriesThe Weekly Standard OnlineOver the course of three days, the Supreme Court heard historic oral arguments in the challenge to Obamacare’s individual mandate. Throughout the week, I posted updates and commentary:

Day One: On whether the Court has jurisdiction to hear the case at all

Day Two: The big question — is the individual mandate unconstitutional?

Day Three: On the proper remedy, and the coming debate among the Justices

Without PrecedentThe Weekly StandardObamacare’s individual mandate is literally unprecedented: it attempts to change the very structure of government, achieving economic policy not just by proscribing certain conduct but by actually prescribing conduct. Yet the Administration’s defense of the mandate before the Supreme Court and lower courts fails to offer any meaningful limit on future mandates. For those reasons, the proper frame of reference for the Obamacare litigation is not previous “Commerce Clause” cases but, rather, recent cases in which the Court confronted other unprecedented assertions of government power that threatened to change the very structure of government. In each of those cases, the Court drew a line in the constitutional sand, pressing back against the elected branches’ constitutional innovation. (My article received generous mentions from the Washington Post’s Robert Barnes, National Review Online’s Ed Whelan, and AEI’s Michael Greve.)

Ahead of His ClassThe Wall Street JournalReviewing a new biography of Judge Henry Friendly, the most influential lower-court judge of the second half of the 20th Century.

The Lost Greatness of Alexander BickelCommentary
This year marks the fiftieth anniversary of The Least Dangerous Branch, a seminal book of constitutional theory by the late Alexander Bickel. I briefly discussed Bickel in an article I previously wrote about Justice Samuel Alito; in this article I go further, discussing the book and then Bickel’s subsequent work. At the outset of his career, he was, unequivocally, a liberal. Two decades later, after the turmoil of ’60s radicalism, he was the Right’s standard-bearer. But that shift reflected not a change in Bickel, but a change in his times.

“When the Facts Change, I Change My Mind”Library of Law and LibertyThe Liberty Fund invited me to join a discussion between Professors Richard Epstein and Paul Salamanca, on the Supreme Court’s recent First Amendment decisions involving video games and funeral protests. I reiterated many of the points that I previously raised in a profile of Justice Alito, but then went slightly further, comparing Justice Alito’s conservative temperament to the anti-ideological instincts of Judge Benjamin Cardozo. For all of its vices, Progressive jurisprudence had at least one virtue: an awareness of stretching legal doctrines past the breaking point.

An Unconstitutional Appointment to an Unconstitutional OfficeThe Weekly Standard OnlinePresident Obama’s decision to “recess”-appoint Richard Cordray to lead the Consumer Financial Protection Bureau was unconstitutional, but even more important is the unconstitutionality of the CFPB itself. (I followed this post up with a second post highlighting Harvard Law Professor Laurence Tribe’s surprisingly shameless flip-flop on recess appointments, and then one more post analyzing the legal opinion published by the Justice Department’s Office of Legal Counsel.)

The Burkean JusticeThe Weekly StandardA long profile of Justice Alito, focusing on his recent opinions in three controversial First Amendment cases, and reflecting on some of his apparent influences, especially the late Alexander Bickel.

Wilkinson and Posner, DissentingThe Weekly StandardTwo prominent conservative judges’ criticism of the Supreme Court’s originalist interpretation of the Second Amendment.

Will the Real VP Please Step Forward? [pdf]The Legal TimesThe Vice President’s constitutional roots are in the Legislative Branch, not the Executive.

Justice Jackson’s Draft Opinions in the Steel Seizure Cases [pdf]Albany Law ReviewReviewing Justice Jackson’s drafts and notes, from the seminal 1950s Supreme Court case on presidential power in wartime.

Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry [pdf]Harvard Journal of Law & Public PolicyOn the Senate’s constitutional power to simply refuse to act on the President’s judicial nominations. Analysis included research into Massachusetts’s original practice of “advice and consent” in the 1780s, a model that the Framers expressly adopted, at the Philadelphia Convention of 1787, as the basis for the U.S. Constitution’s “advice and consent.”

— Cited by the Massachusetts Supreme Judicial Court, Opinion of the Justices to the Governor, SJC-11114 (Mar. 27, 2012).